Under the U.S. Supreme Court: The lost fight for gun control

WASHINGTON, March 3 (UPI) -- As the images of 20 first-graders massacred in Connecticut, of the horrific attack on former Rep. Gabrielle Giffords and others in Arizona, of the slaughter of movie-goers in Aurora, Colo., and of numerous other mass killings in the United States fade in the national memory, the fervor to restrict access to some types of weapons and magazines appears to be abating.

The debate on gun control itself has largely been subsumed in recent weeks by concern over the congressionally mandated sequester and its sweeping across the board cuts in federal programs. Much of the analysis focuses on the catastrophic effects of sequestration on defense, education and first-responders. But there has been little or no analysis of its effects on the federal government's ability to do background checks and enforce the gun laws already on the books.

The Obama administration and some members of Congress are still making the requisite noises about new laws. A small bipartisan group of senators is pushing legislation that would require background checks for all gun sales, even private ones. Vice President Joe Biden, speaking Feb. 21 at a Danbury, Conn., gun-control conference, called on politicians to show courage in enacting new laws.

"We have to speak for those 20 beautiful children who died 69 days ago, 12 miles from here," Biden said.

The National Rifle Association plans to resort to the democratic process to derail those brave enough to support restrictions on gun or ammo possession, targeting Democratic senators in newspaper ads as they run for re-election in 2014.

One politician, Sen. John McCain, R-Ariz. -- who says he loves and respects Giffords as she recovers from her debilitating wounds -- put it bluntly at a town meeting in Phoenix Feb. 22.

McCain told the mother of a victim in the Aurora massacre she needed to hear a little "straight talk" on gun control.

"I can tell you right now you need some straight talk," McCain said to cheers from the town meeting crowd. "That assault weapons ban will not pass the Congress of the United States."

An exchange during a Senate Judiciary Committee hearing on gun control Jan. 30 shows how far apart proponents and opponents of gun control are. But the exchange also highlighted a logical NRA rationale for civilian possession of assault weapons, one that might resonate in some federal courts.

Sen. Richard Durbin, D-Ill., a proponent of gun control, told the NRA's Wayne LaPierre that he hears often from NRA members in his home state.

"I run into some of your members in Illinois and here's what they tell me, 'Senator, you don't get the Second Amendment.' Your NRA members say, 'You just don't get it. It's not just about hunting. It's not just about sports. It's not just about shooting targets. It's not just about defending ourselves from criminals,' as [another witness] testified. 'We need the firepower and the ability to protect ourselves from our government' -- from our government, from the police -- 'if they knock on our doors and we need to fight back.' Do you agree with that point of view?"

"Senator, I think without any doubt," LaPierre responded, "if you look at why our founding fathers put [the Second Amendment] there, they had lived under the tyranny of King George and they wanted to make sure that these free people in this new country would never be subjugated again and have to live under tyranny."

But LaPierre, NRA vice president and chief executive officer, also evoked the image of ordinary people trying to defend themselves, not from the government, but from the forces of chaos.

"What people all over the country fear today is being abandoned by their government," LaPierre said. "If a tornado hits, if a hurricane hits, if a riot occurs, that they're gonna be out there alone. And the only way they're gonna protect themselves in the cold and the dark, when they're vulnerable is with a firearm. And I think that indicates how relevant and essential the Second Amendment is in today's society to fundamental human survival."

At congressional hearings, opponents of gun control have called out "the Second Amendment" when witnesses have asked why civilians needed assault rifles.

But there appears to be no legal or constitutional barrier to a ban on assault weapons or other restrictions, not even the Second Amendment. Any failure by proponents, including President Obama, to enact such restrictions would be the result of the normal political process, not action in the courts on the constitutional question.

Twice within the last five years, the U.S. Supreme Court has narrowly recognized the individual right to bear arms in the Second Amendment, but did so in a a very specific way. The Second Amendment says, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

The first part of the amendment, containing the reference to a militia, is the "prefatory clause." The second part, the "operative clause," contains the right, either individual or collective.

In 2008's District of Columbia vs. Heller and in 2010's McDonald vs. Chicago, the narrow 5-4 majority of Supreme Court justices ruled that the Second Amendment guarantees the individual right to bear arms for defense in the home.

But in Heller, Justice Antonin Scalia, writing for the majority, went out of his way to say the Second Amendment does not prohibit the government from banning certain types of weapons, or imposing other restrictions.

"Like most rights, the right secured by the Second Amendment is not unlimited," Scalia wrote. "From [18th century seminal jurist William] Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

Scalia said: "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

"We also recognize another important limitation on the right to keep and carry arms ... as we have explained, that the sorts of weapons protected were those 'in common use at the time.'"

As for assault rifles, Scalia said, "It may be objected that if weapons that are most useful in military service -- M-16 rifles and the like -- may be banned, then the Second Amendment right is completely detached from the prefatory clause [of a well-regulated militia]. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right [to bear arms] cannot change our interpretation of the right."

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